Wikitravel And Wikimedia Are In A Legal Battle... But Not Over Creative Commons

from the misrepresentation-may-be-an-issue dept

Late last week, a bunch of folks passed along an interesting blog post by David Gerard about a legal dispute between the company Internet Brands and the Wikimedia Foundation (the folks behind Wikipedia). By Gerard's account, Internet Brands -- a company that runs a bunch of content sites, including Wikitravel.org, which it bought in 2006 -- was suing some volunteer admins of the site for "forking" the content on that site and taking up with the Wikimedia Foundation to create a new travel wiki there. As noted, Wikitravel content has a CC-by-SA license (Creative Commons ShareAlike). In response to all of this, the Wikimedia Foundation took it upon itself to proactively file for declaratory judgment that creating a "fork" of Wikitravel is not breaking the law (confusing matters just slightly -- a bunch of former Wikitravel admins had already forked the content and created a separate site in 2006 called Wikivoyage, which is merging into this new travel wiki under the Wikimedia Foundation).

Now, let me be clear: I think that suing your volunteer admins is unbelievably stupid and shortsighted. It pretty much guarantees that it's going to be difficult to attract such help in the future. Similarly, some of Internet Brands' actions in trying to stop this new travel site seem at least somewhat questionable. But... in looking over the details of the initial lawsuit, it seems that Gerard and the Wikimedia Foundation (who I almost always agree with) are not telling the full story, and are being slightly misleading.

The actual lawsuit against the volunteer admins (and again, it's stupid to sue those admins) isn't because of the "forking." In fact, Internet Brands makes it clear in its own filing that the content is CC-by-SA and can be copied with attribution. Instead, the concerns are over how the admins presented themselves and their relationship to Wikitravel in convincing others to move over to the new project. Specifically, Internet Brands suggests that these admins implied that they were speaking for Wikitravel and the entire community there, by saying that the community was moving over to the new operation.

For example, on August 18, 2012, Holliday improperly and wrongfully emailed at least several hundred of Wikitravel members, purporting to be from Wikitravel and informing members that the Wikitravel Website was "migrating" to the Wikimedia Foundation.

This is Internet Brand's version of things, but you can see how their complaint might be a bit more legitimate if Holliday really suggested that it was Wikitravel itself that was "migrating." Of course, the text of the actual email (at least the text shown in the filing) suggests that Holliday didn't go quite that far -- though he was at least somewhat vague.

Specifically, Holliday's email contained the Subject Line, "Important information about Wikitravel!" and its body stated, "This email is being sent to you on behalf of the Wikitravel administrators since you have put some real time and effort into working on Wikitravel. We wanted to make sure you are up to date and in the loop concerning big changes to the community that will affect the future of your work! As you may already have heard, Wikitravel's community is looking to migrate to the Wikimedia Foundation."

That's not quite as clear-cut as IB stated in the preceding paragraph. He doesn't claim to necessarily be "from Wikitravel." He notes that he's writing on behalf of "Wikitravel administrators," which is slightly different, since many of the administrators are volunteers, not employees or representatives of the site. That's part of what makes this tricky. Separately, he doesn't directly say that the entire Wikitravel website is migrating... but rather that the "Wikitravel community" is "looking to migrate." It's a subtle difference, and one could read the email in multiple ways. However, even in the interpretation that favors Holliday the most, you can certainly argue that he was unnecessarily vague, and at least implies that he's speaking for the site and the community as a whole, when he's really just speaking on behalf of some admins and some portion of the community.

Finally, IB also complains that even with the CC-by-SA license, the new site failed to provide proper attribution. This is always a bit tricky too, because people disagree over what constitutes proper attribution. But for all the people jumping immediately to Wikimedia's side in this dispute, it's worth noting that on this point, if you're a Creative Commons supporter, you might be interested in IB's argument, because if they're right here, it could provide ammo to others who seek to enforce any CC "attribution" license in situations where people don't attribute.

Nothing in the lawsuit really, directly, appears to be about the fact that these guys were creating a "fork" -- despite Wikimedia's claim about the legal fight. Now, you could argue that this is the true intention of the lawsuit -- that it's designed to intimidate these admins and try to throw a wrench into this competitive effort. But, at least on its face, the actual legal filings seem to have a bit more merit than Wikimedia's initial claims suggest. In the end, I (once again) think that Internet Brands is making a tactical (if not legal) mistake in suing, because it will likely tarnish the brand and may make it difficult to attract new admins. And, conceptually, I'm all for Wikimedia Foundation setting up a fork of Wikitravel and trying to do more, and create value that brings the community from Wikitravel over to the new site.

But the lawsuit is about these specific activities, in which the filing makes a reasonable argument that a few admins implied they spoke for Wikitravel (or for the wider community) when that was not necessarily the case. Either way, it'll be interesting to see what happens, but I hope that people read the details before automatically assuming the spin that's been making the rounds is entirely accurate. The claims that these admins are being sued for forking Creative Commons content appear to be simply incorrect.

Similarly, in my read of Wikimedia's lawsuit seeking default judgment, it seems like they may be going a bit too far. The filing tries to argue that Internet Brands is seeking to prevent the use of the content itself, but the actual filing does no such thing. Thus, it's possible that Wikimedia Foundation may run into some problems, if the court doesn't believe that an actual "controversy" is being presented here. For what it's worth, courts don't always look kindly at declaratory judgment cases if there's no real controversy, as they see them as a waste of time. While there is perhaps the germ of a controversy here, I could definitely see the court reading Wikimedia's filing and Internet Brands' actual lawsuits, and realizing that what Wikimedia describes is wholly different than what IB actually said in its lawsuit, and then just dumping the case.

Reader Comments

Re: Huh?

In the open-source community, a fork is what occurs when two (or more) versions of a software package's source code are being developed in parallel which once shared a common code base, and these multiple versions of the source code have irreconcilable differences between them. This should not be confused with a development branch, which may later be folded back into the original source code base. Nor should it be confused with what happens when a new distribution of Linux or some other distribution is created, because that largely assembles pieces than can and will be used in other distributions without conflict.

Forking is uncommon; in fact, it is so uncommon that individual instances loom large in hacker folklore. Notable in this class were the Emacs/XEmacs fork, the GCC/EGCS fork (later healed by a merger) and the forks among the FreeBSD, NetBSD, and OpenBSD operating systems.

(*) For terms like "fork", used in their technical sense, the Jargon File is about as authoritative as it gets.